QSpace Community:http://hdl.handle.net/1974/8402015-08-02T21:15:21Z2015-08-02T21:15:21ZGenocidio, La Cosa Nostra: Uncovering Theories of Individual Responsibility for Collective International CrimesBayley, Deborahhttp://hdl.handle.net/1974/127042015-01-21T20:00:26Z2015-01-21T05:00:00ZTitle: Genocidio, La Cosa Nostra: Uncovering Theories of Individual Responsibility for Collective International Crimes
Authors: Bayley, Deborah
Abstract: The purpose of this study is to examine the dilemma of how individual criminal responsibility can be attributed, in a principled manner, for crimes that have been perpetrated through collective conduct within the context of international criminal law. International crimes are inherently collective, and raise issues of complexity and gravity that do not commonly arise in domestic law, but which share similarities with domestic law’s treatment of organized crime. The traditional foundation for attributing individual criminal responsibility, being causation, is examined and found to be problematic in the case of collective crimes, such as genocide, crimes against humanity, war crimes, and the crime of aggression. It is suggested that non-causal justifications for attributing criminal liability are consistent with societal concepts of blame, responsibility, and harm, and should be considered in the interests of generating a more comprehensive and predictable theory for personal guilt in collective crimes. Four approaches to individual criminal responsibility for collective conduct that have emerged in international criminal law are reviewed, and found to be problematic. However, as opposed to discovering a fifth approach, it is suggested that a return to the founding theory of Anglo-American common law conspiracy may offer a viable solution. A historical review of conspiracy theory demonstrates that when the theory is applied with integrity it presents a non-causal justification for individual criminal responsibility based an augmented form of agency theory, supported by concepts of risk creation. Its elements, when properly applied, present predictable and comprehensive limits on liability.
Description: Thesis (Master, Law) -- Queen's University, 2015-01-21 13:02:11.6932015-01-21T05:00:00ZTax Information Exchange Agreements and the War Against Tax EvasionKerzner, DAVIDhttp://hdl.handle.net/1974/126512014-12-15T20:35:46Z2014-12-15T05:00:00ZTitle: Tax Information Exchange Agreements and the War Against Tax Evasion
Authors: Kerzner, DAVID
Abstract: Illegal tax practices such as tax evasion cost governments billions of dollars of lost revenues. Such practices interfere with tax policy objectives that many nations have adopted to promote equity in the administration of their tax systems. Countries like Canada and the United States which tax their residents (and citizens in the U.S.) on income they earn throughout the world rely on the ability to exchange information with tax havens and other countries in order to administer their tax systems, and combat tax evasion. Tax evasion received new attention with the coming to light of a string of massive tax evasion scandals involving UBS Bank in Switzerland in 2008, and more recently through the leakage of millions of offshore records in 2013. During the past five years, countries have signed hundreds of single purpose treaties to exchange information known as Tax Information Exchange Agreements (TIEAs). Canada has signed 22 of these TIEAs.
The primary objective of this thesis is to evaluate the capacity of TIEAs to be an effective tool against offshore tax evasion. It does so firstly by reviewing the policy objectives of TIEAs in order to later determine their performance against these stated objectives. Second, it reviews domestic and international alternative legal mechanisms to obtain foreign based taxpayer information in order to later evaluate the effectiveness of TIEAs to combat offshore tax evasion as compared with these measures, particularly those used by the United States. The research identifies deficiencies in the TIEA and exchange of information regimes and prescribes more effective arrangements to deal with these problems. The central argument of this thesis is that in their current form TIEAs offer fiscal authorities like the CRA a very limited capability to uncover existing tax evasion by residents of Canada. It reviews the TIEA network in Canada, the development and implementation of TIEAs by the OECD and Global Forum from 1998 through 2013, and recent experiences in the field of exchange of information by the United States with Switzerland.
Description: Thesis (Ph.D, Law) -- Queen's University, 2014-12-12 15:13:10.0282014-12-15T05:00:00ZUnderappreciated Resource or Inadequate Measure?Molos, DIMITRIOShttp://hdl.handle.net/1974/84022013-10-03T21:29:37Z2013-10-03T04:00:00ZTitle: Underappreciated Resource or Inadequate Measure?
Authors: Molos, DIMITRIOS
Abstract: Article 27 of the International Covenant on Civil and Political Rights is a legally binding and justiciable minority protection provision. It stipulates, “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own lan-guage.” Perhaps due to its negative, weak and qualified terminology, too many legal scholars display a dismissive attitude toward this article suggesting that they deem it to be an inadequate measure of minority protection. This thesis seeks to address the question of whether article 27 is simply another inadequate measure or an underappreciated resource through analyses of four key questions: (i) the scope question, (ii) the definitional ques¬tion, (iii) the right-bearer question, and, (iv) the obligation question. Article 27’s cautious terminology has produced much confusion and controversy, but the United Nations Human Rights Com¬mittee’s practice has helped clarify many significant points of contention. Despite contesta¬tions to the contrary by many States parties, article 27 has a universal scope and applicability with only two minor, but significant, exceptions. The right-holder is a person belonging to a non-majority ethnic, national, indigenous, racial, religious or linguistic community, and she bears and exercises the rights protected by article 27 as an individual, even though she has a right to exercise them in concert with other members of her community. States parties are obligated to ensure that persons belonging to minority communities have these rights. Hence, I suggest that article 27 should be interpreted according to the following formulation:
States parties have negative, and possibly also positive, obligations to ensure that persons belonging to non-majority ethnic, national, indigenous, racial, religious or linguistic communities have individual rights to enjoy their own culture, to profess and practise their own religion, and to use their own language, including also the right to exercise these rights in concert with other members of their community.
Description: Thesis (Master, Law) -- Queen's University, 2013-10-01 18:37:15.4162013-10-03T04:00:00ZHybrid Constitutionalism to Mainstream Human Rights in a Unified KoreaMoon, DAVIDhttp://hdl.handle.net/1974/83882013-10-03T05:08:23Z2013-10-02T04:00:00ZTitle: Hybrid Constitutionalism to Mainstream Human Rights in a Unified Korea
Authors: Moon, DAVID
Abstract: Amidst the global wave of democratization, modernization, and economic engagement during the 1980s and 1990s, the traditional tenets of constitutionalism have proven to be unwieldy dogma for States undergoing periods of rapid transition. In order to retain the administrative capacity to steer – rather than merely adapt to – political and social change, numerous transitioning States have adopted a new paradigm of constitutionalism, namely transitional constitutionalism, characterized by a centralized and streamlined structure of governance. However, in many instances, including Korea’s post-division transitional history, this model has demonstrably undermined fundamental human rights protections. In this thesis, I propose a hybrid constitutional paradigm for unification in Korea (another form of State transition) which seeks to balance the dual objectives of effective governance and human rights protection. I do so by examining and critiquing the core principles of traditional and transitional constitutionalism, outlining the human rights issues that the unified Korea will likely confront in its constitutional trajectory based on an analysis of Korea’s political, social, cultural, and constitutional history, and finally proposing a hybrid model of constitutionalism that utilizes an institutional approach to prevent violations of human rights in the unified Korea while allowing the State to retain governmental efficiency during transition.
Description: Thesis (Master, Law) -- Queen's University, 2013-09-30 11:35:33.3622013-10-02T04:00:00Z